Of the two charges preferred against Sergeant Bergdahl, the first is desertion. But the desertion charge against Bergdahl is special. It does not allege that Bergdahl left his unit with the intent to remain away permanently – a typical desertion charge and a violation of Article 85(a)(1). Rather, it alleges that he left his unit “with the intent to shirk important service and avoid hazardous duty” – a less common violation of Article 85(a)(2):
CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 85
SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.
Article 85 of the UCMJ is based in part on Article 28 of the Articles of War, which was modified in 1920 to include the language that is now found in Article 85(a)(2). See 41 Stat. 787 (1920). An early case decided by the Court of Military Appeals provides meaningful context:
Desertion with intent to avoid hazardous duty – by its very terms – connotes an absence without leave the prompting for which is a specific intent entertained by the offender to avoid the hazardous duty present or in prospect. As a matter of law, the offense is not committed by reason of a naked unauthorized absence, without more, from a unit engaged in hazardous duty. . . . In terms of legal distinction it is manifest that desertion with intent to avoid hazardous duty is not identical with absence without leave from a unit engaged in hazardous duty. Instead, the entertainment of a particular purpose lies at the very heart of the desertion offense.
United States v. Apple, 10 C.M.R. 90, 91 (C.M.A. 1953) (emphases omitted). And so, to convict Sergeant Bergdahl of the charged offense of desertion, the Government needs to prove that he had the specific intent to either avoid hazardous duty or to shirk important service, such duty or service being “combat operations,” “guard duty,” or “combat patrol duties.”
To this end, however, Bergdahl’s own words may doom him. This CNN report states that:
Sgt. Bowe Bergdahl told the military he left his unit in eastern Afghanistan in July 2009 intending to walk to the nearest U.S. military outpost to report wrongdoing, believing he could not trust his own commanders to deal with his concerns, according to sources familiar with the Army investigation.
And Bergdhal’s attorneys sent a letter on March 2, 2015, asserting that:
While hedging its bets (n.347), the [Army’s investigative] report basically concludes that SGT Bergdahl did not intent to remain away from the Army permanently, as classic “long” desertion requires. It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.
Letter at 7 (pages
unnumbered numbered at the top; see linked PDF at 8). Of course, it is meaningless that Bergdahl did not intend to remain away permanently. Bergdahl is charged with so-called “short” desertion, not “long” desertion. See Alfred Avins, A History of Short Desertion, 13 Mil.L.Rev. 143 (1961) (available here).
Yet if Bergdahl truly intended to make a report to the nearest general officer (after traversing southeastern Afghanistan alone, on foot, and seemingly unarmed), that doesn’t prevent a conviction for desertion. In fact, it might guarantee his conviction, because Bergdahl will be deemed to have intended the natural and probable consequences of his actions, and his ulterior motives are likely irrelevant.
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